Discrimination and Injured Workers Rights

The California Labor Code section 132(a) is yet another device prohibition discrimination against injured workers (in addition to California Fair Employment and Housing Act or “FEHA”). This section prohibits employer discrimination against an employee based on:
* Applying or intending to apply for workers’ compensation benefits; or
* Receiving a rating, award or settlement; or
* Testifying or intending to testify in another employee’s case.

By enacting this section, the California legislature expressly intended to declare its general policy in favor of preventing all discrimination against injured employees resulting from workers’ compensation injury.

Discrimination as used in this section means treating injured employees differently, making them suffer disadvantages that do not apply to other employees because the employee was injured or had made a claim.

It is important to note that employers are not bound to reinstate or retain an injured worker where “business realities” dictate otherwise, that is, where these workers are not long competent to perform their jobs, or their positions are no longer available. In other words, an employer is not guilty of retaliatory discrimination when the employee cannot perform the customary work without risk of either being re-injured or suffering further injury. But employers may not discriminate in any manner against employees who remain competent in their former positions are still available to work.

As stated earlier, section 132(a) is not an exclusive remedy to address discrimination of an injured workers, as an injured employee may also file a civil action in court for disability discrimination, failure to accommodate disability, wrongful termination in violation of public policy and possibly other claims if apply.